The first significant stage of post-Roe abortion litigation is underway and focuses heavily on abortion pills. GenBioPro, a pharmaceutical company that makes the drug mifepristone, has asked a federal court to declare that West Virginia’s anti-abortion law is inconsistent with the Federal Drug Administration’s determination that the pill is safe and effective. If the lawsuit succeeds, states would not be able to criminalize medical abortions — terminations that rely on medication rather than a procedure.
From the standpoint of abortion-rights advocates, a ruling that uses federal law to protect medical abortion would not be as good as restoring Roe v. Wade. But it might be the next best thing. Medical abortion accounts for more than half the terminations in the U.S.
To be sure, mifepristone is approved by the FDA only for abortions through the 10th week of pregnancy. People seeking the medication would still have to find prescribers, and pharmacies would still need to apply for a special certification to dispense it. Yet the fact that pills can be prescribed by telemedicine, mailed to patients, and taken at home would still provide some measure of freedom to women in states that ban abortion.
